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ELRCDismissedELRC Cause No. 380 of 2015 (formerly HCCC Cause No. 2 of 2003; CMCC Cause No. 14 of 2011)· [2019] KEELRC 792 (KLR)

Isaac Shivachi Mutoka v Secretary Public Services Comission & 8 others [2019] KEELRC 792 (KLR)

Employment and Labour Relations Court
26 September 2019
MNMathews N. Nduma
2,784 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former council officer lost his case because he couldn't prove his claims in court and waited too long to file most of them.

What this practically means

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Executive summary

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The claimant, a former Public Service Commission employee who served as a personnel officer and later as Town Clerk and chief accounting officer in various municipal and town councils including Mombasa, Kimilili, Vihiga, Yala and Kitui, sued the Secretary of the Public Service Commission, the Principal Secretary Ministry of Devolution and Planning, the Transition/Intergovernment Coordination Authority, five county governments and the Attorney General. He sought arrears of salary and allowances for the periods 1999 to 2003, refunds of superannuation fund deductions and Ukulima cooperative shares never remitted, transfer and luggage allowances, damages for lost school fees at Moi University, and a declaration that his termination on grounds of desertion was unlawful and unfair. He alleged persecution, discrimination and inhuman treatment across his stations, culminating in a breakdown that caused him not to report to Bungoma for three years, after which the Public Service Commission terminated his employment. The respondents denied the claims entirely; the County Government of Bungoma denied ever employing him and asserted claims against former municipal councils had to be submitted to the Transitional Authority, which was never done. The court framed two issues: lawfulness of the termination and proof of the claims. It found the claimant deserted duty for about three years without medical proof of the alleged psychological breakdown, and that the Commission had lawful cause to terminate. It found none of the monetary claims proved on a balance of probabilities, noting the claimant had been the A.I.E holder and that fresh claims against Mombasa, Siaya and Kitui were time-barred under section 4(1) of the Limitation of Actions Act, ousting jurisdiction. The suit was dismissed in its entirety with each party bearing their own costs, the court declining to order costs against the claimant, an aggrieved former public servant.

Key legal issues

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01

Whether the termination of the claimant's employment for desertion was lawful and fair

Holding

The termination was lawful and fair as the claimant deserted duty for about three years without lawful authority or justification

Reasoning

The claimant admitted deserting work for three years, seeking pardon and reinstatement by letter. He pleaded psychological breakdown caused by persecution but produced no medical diagnosis or treatment records. The court found it implausible that persons in the different town councils where he served all conspired to harass him. The Public Service Commission followed a show-cause process before terminating on 29th May 2012.

p. 4
02

Whether the claims for unpaid salaries, allowances and unremitted deductions against the various respondents were proved

Holding

None of the claims was proved on a balance of probabilities; the burden of proof under sections 107 and 108 of the Evidence Act was not discharged

Reasoning

The claimant, though the A.I.E holder and chief accounting officer in most of the councils, did not adequately explain the claimed amounts through his list of documents. He sought arrears without proving he rendered service during the relevant periods. His claims also changed and expanded drastically from the original 2003 plaint against Kimilili Municipal Council to fresh claims against Mombasa, Siaya and Kitui in the 2016 amended claim.

p. 4
03

Whether the court has jurisdiction over the claims arising between 1999 and 2002 against Mombasa, Siaya, Kitui and Vihiga County Governments

Holding

The claims are statute-barred under section 4(1) of the Limitation of Actions Act and the court lacks jurisdiction to entertain them

Reasoning

The claims for arrear salary, allowances and unremitted deductions relate to the period June 1999 to May 2003 but were first raised in the amended claim of 2016 and in CMCC No. 14 of 2011, long after the three-year limitation period for contract claims had expired. Claims based on such time-barred causes of action are bad in law and cannot be entertained.

p. 4
04

Whether claims against former municipal councils could be pursued directly against county governments without verification by the Transitional Authority

Holding

Claims against former municipal councils were required to be submitted to the Transitional Authority for verification and directives, which the claimant never did

Reasoning

RW1 testified that upon transition from municipal councils to county governments, all claims against former councils were to be submitted to the Transitional Authority for recommendations. The claimant never submitted his claims for verification. The court relied on the Court of Appeal decision in Interim County Secretary, County Government of Kakamega vs Republic, Exparte Ali Adam and another to this effect.

p. 4

Legal principles established

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  • A claimant who alleges psychological incapacity to work must prove it through medical evidence; uncorroborated allegations of persecution will not vitiate a termination for desertion
  • Claims against former local authorities arising from the transition to county governments must first be submitted to the Transitional/Coordination Authority for verification before being litigated
  • An employee who does not discharge the burden of proof under sections 107 and 108 of the Evidence Act cannot succeed on claims for unpaid emoluments

Court orders

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  1. 1.The entire suit by the claimant is dismissed
  2. 2.The claims against the respective respondents are dismissed singularly and severally
  3. 3.Each of the parties to meet their own costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (suit filed as E&LRC at Kisumu Cause No. 380 of 2015)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Isaac Shivachi Mutoka v Secretary Public Services Comission & 8 others [2019] KEELRC 792 (KLR)", Case Analysis (2019). ELRC Cause No. 380 of 2015 (formerly HCCC Cause No. 2 of 2003; CMCC Cause No. 14 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/792/eng@2019-09-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.